As one of the inaugural members of the MACRMI alliance, Coverys has continued its longstanding support of proactive patient communication and the disclosure of adverse events. The advent of M.G.L. chapter 231 section 60L and the MACRMI-sponsored CARe pilot program provided Coverys and its policyholders with industry and public support for this commitment and a new means through which to effectuate early resolution of adverse medical outcomes.
To date, Coverys has supported the communication and early resolution mission through continuing education of its claims professionals and defense attorneys in the CARe culture and by providing them with tools and resources needed for successful early communication and resolution of adverse events.
Since the law went into effect, we have had the opportunity to resolve many matters in the pre-litigation phase which benefits both patients and the healthcare providers we insure; more timely resolution of adverse events results in less professional and psychological stress on our policyholders. To benefit patients and their families, we have also been able to effectuate more timely compensation to patients whose adverse events warrant settlement.
In spite of our successes, the communication and early resolution era is not without its challenges and frustrations. While many patients and their attorneys are willing to provide the information (e.g., medical records, tax returns) necessary to properly investigate and, when appropriate, compensate adverse medical events, cooperation is not universal. Without requisite information, we may be unable to thoroughly investigate liability, causation and damages and therefore, are not able to resolve the matter pre-litigation. When this happens, no one benefits. Patient, provider and insurer are at an impasse and, more often than not, the courts absorb another lawsuit that did not need to be filed.
For example, last year one of our policyholders received a pre-litigation notice on a matter involving an adverse outcome following orthopedic surgery. The healthcare provider had disclosed the adverse event to the patient and apologized for its occurrence. The patient, who had lost a substantial amount of time at work due to the injury, sent a pre-litigation notice, which included claims for his lost wages. Early expert review of the medical records surrounding the surgery indicated that this was a case on which compensation should be offered. The question then became, how much?
To evaluate the damages, our claims consultant requested the patient’s tax returns for the past five years as well as a patient authorization to obtain medical records from a facility at which the patient had previously undergone a similar orthopedic procedure. This information was crucial to ascertaining the degree of impairment caused by this adverse event as well as the financial impact it had on the patient. Much to our dismay, none of these vital materials were provided.
After multiple requests went unanswered, Coverys informed the claimant’s attorney that we would be closing our file until those materials were provided. Still, the attorney did not respond.
After another few months went by, the patient, through his attorney, filed suit. Through routine discovery requests, the information previously requested was provided within about eight months of the matter going into suit. Once we had the prior treatment records and employment/earnings information in hand, we were able to complete our evaluation and offer a fair settlement that was readily accepted by the plaintiff. However, the costs to all parties – for the time and expense required
to move this matter through the initial stages of litigation – frustrates not only the individuals involved, but undermines the intent of M.G.L. chapter 231 60L.
To avoid this outcome, Coverys continues to educate patients and their attorneys on the pre-litigation process and establish appropriate expectations in terms of discovery. It is important for patients and their families to view the requests for information as building blocks to proper evaluation of the issues, rather than as roadblocks intended to prevent resolution. It may take time to build this type of trust and understanding, but with continued reinforcement of the CARe culture and best practices, CARe should have a meaningful and long-lasting impact on patient safety and both patient and provider satisfaction.
Stephanie A. Sheps, Esq., Director of Claims, Coverys
Jan Puchalski, Clinical Risk Manager Consultant, Coverys